The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

Tuesday, January 26, 2016

For anyone who was wondering: the arc of the common law is long and it bends towards privacy. The Ontario Superior Court of Justice has this past week expressly recognized the tort of "public disclosure of private facts".

This is a huge deal, as it explicitly expands the scope of privacy protection under the common law and stands as an example of how the traditional courts (and perhaps new-ish torts) can be called upon to help victims of cyberbullying.

Arising from a horrific case of revenge porn where the defendant had uploaded to the internet an explicit sexual video of the plaintiff, the Court in Doe v D., 2016 ONSC 541 (CanLII) [Edit: try this version -- I understand that CanLII may have inadvertently published some details contrary to the publication ban], said this about the ability to sue for invasion of privacy:

C. Invasion of Privacy

[34] In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal for Ontario recognized the existence of the tort of invasion of privacy in the context of intrusion upon seclusion. In that case, the Court found that the defendant had committed the tort of intrusion upon seclusion when she used her position as bank employee to repeatedly examine private banking records of her spouse's ex-wife. While that case dealt with a significantly different fact situation, many of the Court’s comments are germane to this case, and I will therefore refer extensively to that decision.

[35] To begin with, the Court noted (at para. 15) that “[t]he question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights. Although the individual's privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain.”

[36] The Court went on to recognize as authoritative a seminal American legal article on the subject by William L. Prosser, "Privacy" (1960), 48 Cal. L. Rev., noting that “Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. “

[37] The Court also noted (at para. 19) that “[t]he tort that is most relevant to this case, the tort of ‘intrusion upon seclusion’, is described by the Restatement [Restatement (Second) of Torts (2010)], at 652B as: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.’”

[38] The Court went on to note (at para. 20) that “[t]he comment section of the Restatement elaborates this proposition and explains that the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff's private affairs. Of particular relevance to this appeal is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained.’” The Court commented that if the plaintiff in Jones had a right of action, it fell into the first category of intrusion upon seclusion, described by Prosser as comprised of the following elements:

• there must be something in the nature of prying or intrusion;

• the intrusion must be something which would be offensive or objectionable to a reasonable person;

• the thing into which there is prying or intrusion must be, and be entitled to be, private; and

• the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

[39] Later in its reasons, when considering the desirability of recognizing the tort of intrusion upon seclusion, the Court made a number of comments that are relevant to the issues in this case, including the following:

39 Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual's relationship with the rest of society and the state. The Supreme Court of Canada has consistently interpreted the Charter's s. 8 protection against unreasonable search and seizure as protecting the underlying right to privacy. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.R. No. 36, at pp. 158-59 S.C.R., [page254] Dickson J. adopted the purposive method of Charter interpretation and observed that the interests engaged by s. 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacy held by all citizens.

…

43 In Hill v. Church of Scientology of Toronto 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, Cory J. observed, at para. 121, that the right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law tort of defamation. …

…

45 While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasions to develop the common law in a manner consistent with Charter values: [citations omitted].

46 The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff's seclusion ….

…

67 For over 100 years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of "the pressing need to preserve 'privacy' which is being threatened by science and technology to the point of surrender": "The Law and Privacy: the Canadian Experience", at p. 1. See, also, Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled and the nature of our communications by cellphone, e-mail or text message.

68 It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

69 Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. …

[40] The passage quoted immediately above most certainly applies to the case before me.

[41] While the facts of this case bear some of the hallmarks of the tort of "intrusion upon seclusion", they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

[42] The comment section of the Restatement elaborates on this proposition as follows:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

Although written in somewhat antiquated language, the concepts described are entirely apposite to this case. Among the illustrations offered by the Restatement is the following: “A publishes, without B's consent, a picture of B nursing her child. This is an invasion of B's privacy.”

[43] Prosser listed the features of this tort as follows:

• the disclosure of the private facts must be a public disclosure, and not a private one;

• the facts disclosed to the public must be private facts, and not public ones; and

• the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

[44] Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.

[45] To permit someone who has been confidentially entrusted with such details – and in particular intimate images - to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies. I therefore would hold that such a remedy should be available in appropriate cases.

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

1 comment:

I find this decision troubling for a number of reasons. However, to begin I must be clear in that I agree the actions of the defendant are reprehensible and inexcusable. Regrettably, this alone cannot justify a poor decision.

1. Does the established tort of breach of confidence not already cover exactly this type of situation? We have all three elements of this tort present: the information is of a confidential nature, it was communicated in confidence, and it was disclosed to the detriment of the claimant. We don’t need another type of action to muddy these waters.

2. Regarding harm, from my reading of the decision, it appears that no expert evidence was presented to substantiate the judge’s leap to comparing this disclosure of information to sexual assault, and the judge went in this direction solely on the persuasion of the plaintiff’s counsel. The impact of sexual assault has been established only with the opinion of qualified professionals. Surely, omitting this foundation for analysis is a grave error of law by the judge.

3. Is this also not a case where the Mustapha foreseeability principles should have been considered? I have great sympathy for the plaintiff but without expert evidence, the effects of the disclosure are purely subjective and have not been scrutinized for reasonability. Yet another error of law.

4. The quantum of damages has been pulled out of thin air and is not supported by any expert evidence.

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